A Power of Attorney could be the most important document in a comprehensive estate plan. A Power of Attorney is a legal document that delegates authority from one person to another. The person who makes a Power of Attorney (called the “principal”) grants their agent specified rights to act on the principal’s behalf. The scope of a Power of Attorney can vary widely, as authority is limited to specified acts or authority is broadly bestowed upon the agent to engage in a wide range of action. Each person’s need for a power of attorney should be assessed under their particular circumstances.
If the Power of Attorney is “durable,” then the principal’s authority to act survives incapacity. In other words, if the principal is injured or unconscious in a way that prevents them from being able to take action individually, the principal’s authority will remain active even under these conditions. To make a power of attorney durable, a principal simply needs to make that intention known in the wording of the Power of Attorney.
A durable Power of Attorney is crucial for aging individuals who may need medical treatment or simply unable to physically transact business for themselves. Without a durable Power of Attorney, and where the principal is incapable of managing their person or property, the only other option is to file a petition for Florida guardianship over the person and/or that person’s property. The time, cost and stress of a court will drastically exceed the cost of a power of attorney.
Dementia and other conditions of the mind can create problems those who are acting as an agent, and who are attempting to protect the principal’s assets and financial interests. It is important to remember that a power of attorney, durable or otherwise, does not remove the principal’s right to make decisions for themselves. Therefore, where a person with Alzheimer’s Disease or like condition takes action to manage their funds or property, the power of attorney does not work as a bar to that action. Obviously, this can be problematic for individuals who are susceptible to undue influence or who simply decide to engage in transactions that are a direct result of the illness. Under those conditions, a spouse or loved one may be forced to seek a guardianship over the principal since the power of attorney will not be sufficient to protect the principal’s interests.